The Soundest Theory of Law C. L. Ten

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I See, Taking Rights Seriously, ch. 6.
of law as the soundest. Indeed, it does not allow even a

single lawyer to distinguish a set of legal principles from

his broader moral and political principles. His theory of

law will usually include almost the full set of political

and moral principles to which he subscribes; indeed it is

hard to think of a single principle of social and political

morality that has currency in his community and that he

personally accepts, except those excluded by constitutional

considerations, that would not find some place and have

some weight in the elaborate scheme of justification required

to justify the body of laws (p. 68).
But in what sense is it true that, for example, the liberal judge in

a racist society includes his moral and political principles in his

theory of law? Suppose an anthropologist is asked to justify, as

best he can, the practice of cannibalism among a primitive tribe.

He himself believes that cannibalism is morally indefensible, but

he is told that his business is not to undermine a settled practice

but rather to find the soundest moral theory which explains and

justifies the practice. The anthropologist may come up with the

following ingenious, partial justification: the cannibals are non-

sexists, non-racists and not religiously prejudiced because they

eat every missionary who visits them irrespective of sex, colour

or creed. It is true that at a certain very general level the anthro-

pologist has succeeded in including his own moral and political

principles. I suggest that the liberal judge is in the same position

as the anthropologist. If his moral and political principles feature

in the soundest theory of law, it will be in much the same way that

the anthropologist's moral and political convictions enter into

the soundest theory of cannibalism. It is true that other judges

will find the legal principles embedded in the settled law of their

society morally acceptable. But we are concerned with whether

the soundest theory must be a normative theory, and the experi-

ence of, for example, liberal judges in a liberal society is not a

good basis to generalize from.

Similar considerations apply even to the threshold version,

although here the judge has more room to manoeuvre. Some

parts of the settled law may be set aside if they conflict with a

moral theory that the judge accepts, provided his moral theory is

consistent with a sufficient proportion of the rest of the settled

law. But it is possible, as Dworkin himself points out, that there

is no moral theory acceptable to the judge which is consistent

with enough of the settled law. The judge then is reduced to a

choice between moral theories, each of which is to him morally

indefensible, though perhaps not to the same degree.

What must Dworkin do to convert his soundest theory into a

normative theory with some bite? He must greatly enlarge its

moral dimension at the expense of its dimension of fit. But to do

that would be to reject large parts of the settled law as mistakes.

It would be to move close to traditional natural law theory, and

certainly beyond any possibility of reconciliation with legal

positivism. But so far there is no evidence in Dworkin's writings

to suggest that he wishes to move in that direction.

In 1961 the two major legal positivists of this century, Kelsen

and Hart, debated in California. Kelsen remarked that his dispute

with Hart was of a wholly novel kind in that whereas he agreed

with Hart, Hart did not agree with him.2 In reading Dworkin's

elegant and eloquent essays, legal positivists will be moved to

share some of Kelsen's sentiments. For although it is certain that

Dworkin strongly disagrees with the legal positivists, it is not as

yet clear whether they should disagree with him.
I 'Seven Critics', p. 1254. But here Dworkin uses the notion of 'normative'

issue in a ,vide sense in which a judge faces a normative question ,whenever

he decides on a moral issue, even if his decision is dictated by moral

principles he himself rejects.
2 H. L. A. Hart, 'Kelsen Visited', University of California Los Angeles Law

Review x (1962-3), 710.

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